Emeritus Professor Peter Handford on limitation issues in Personal Injury

Monday November 13, 2017

Peter Handford was appointed a Professor of Law at the University of Western Australia in 2004, having taught at UWA, either full-time or part-time, since 1977. On his retirement in 2016 he was made an Emeritus Professor. He was the Executive Officer and Director of Research of the Law Reform Commission of Western Australia from 1983 to 1998. He was admitted to practice in England (as a barrister), Victoria and Western Australia. He was the principal author of the Law Reform Commission's Report onLimitation and Notice of Actions (1997), which led to the Limitation Act 2005. He has also written a text book, Limitation of Actions: The Laws of Australia (4th ed 2017), and several articles on limitation of actions. He is also the author of Tort Liability for Mental Harm (3rd ed 2017) and many articles on this and other torts topics.

Emeritus Peter Handford

We had the pleasure of sitting down with Peter recently to discuss key challenges and opportunities facing the industry today.

You can find the full Q&A below.

Has the Limitation Act 2005 changed the law for the better?

There is no doubt that the Limitation Act 2005 (WA) (often wrongly referred to as the Limitations Act) is a great improvement on its predecessor, the Limitation Act 1935 (WA). Instead of a statute which did little more than reproduce 19th century English law, WA now has the most modern limitation legislation of any state in Australia. My book, Limitation of Actions: The Laws of Australia (4th ed 2017) deals with both the old and the new law.

A particular feature of the Act is the way in which it has tried to reduce the complexity of the law – for example, by reducing the number of separate limitation periods to a minimum. One way in which it does this is by the device of a general limitation period (of 6 years) which applies to any cause of action unless some other period  is more appropriate. The chief exception is personal injury, where the limitation period is 3 years, in line with an Australia-wide agreement entered into at the time of the ‘insurance crisis’ and the Ipp Report.

There are many other improvements – for example the fact that it is now possible to get an extension of the limitation period in personal injury cases, whereas formerly this was not possible; much better and fairer provisions dealing with claims by minors – provisions that are fairer to both plaintiffs and defendants;  and the abolition of the very short limitation periods and complex rules that formerly applied to claims against public authorities.

This is not to say that the Act is perfect. I deal with some of the limitations of the personal injury provisions in my answer to another question below. There are some other problems, for example the way in which the Act deals with equitable claims. Unlike most Limitation Acts, the WA Act attempts to subject all equitable claims to a limitation period, but the application of the general 6 year period, together with a specific provision for certain equitable claims in s 27 (tacked on when the bill was passing through Parliament), is not ideal.

What’s a misconception some lawyers have regarding limitation issues in personal injury law?

Some lawyers (taking their cue from limitation legislation in some other states) may assume that the Act now gives courts an open-ended discretion to grant extensions of time in personal injury cases.  Such provisions can be found in the legislation in Victoria (eg Limitation of Actions Act 1923 s 23A) and New South Wales (Limitation Act 1969 s 60G – which admittedly no longer applies, having been superseded by the 2002 amendments). S 39 of the Limitation Act 2005 (WA) does not go so far as to confer a general discretion. It allows a plaintiff to apply for an extension only where the court is satisfied that, when the limitation period expired, a person to whom the cause of action accrued was not aware of certain facts, eg the physical cause of the death or injury. This means that s 39 is much closer to more restricted extension provisions such as s 31 of the Limitation of Actions Act 1974 (Qld).

The reduction of the ordinary limitation period for personal injury to 3 years may also have a restrictive effect. Under the old law, plaintiffs had 6 years to bring a claim in most personal injury situations. Now they only have 3 years, which may be a fairly short period, given that plaintiffs may often not consult lawyers until nearly 3 years (or even longer) after the injury occurred. It is true that there is a special rule about when the cause of action accrued (s 55), which gives plaintiffs extra time in some cases – but not in all.

Is there a key takeaway you can highlight from recent decisions on the Limitation Act 2005?

There is no doubt that the courts are interpreting the Limitation Act 2005 in a constructive way, in an endeavour to make the legislation work and ensure that the benefits of the new Act are available to litigants in all proper cases. This applies in particular to cases on the retrospective operation of the Act, such as Phillips v Minister for Health (2012), holding that s 55 of the 2005 Act applied, rather than the 1935 Act, and Asher-Relf v Minister of Health (2009) and Burns v Minister v Health (2013) on the operation of the childbirth injury limitation period in s 7; also to cases such as Abreu v Thomas Peacock (2013) holding that the Limitation Act 2005 was not displaced by s 93K of the Workers Compensation and Injury Management Act 1981 (WA).

You can hear more from Peter at the Personal Injury End of Year Roundup seminar, being held on Wednesday 15 November at the Parmelia Hilton Perth.



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